ALERT DIGEST 10 of 1994

Part 2

4.1.

This Bill was introduced into the Legislative Assembly on 5 October 1994 by The Honourable Jan Wade MP, the Attorney-General with The Honourable Pat McNamara MP.

4.2

This Bill amends the Estate Agents Act 1980, the Auction Sales Act 1958 and the Stamps Act 1958. Its purposes are:-

to abolish the Estate Agents Board;
to constitute an Estate Agents Council, an Estate Agents Licensing Authority, an Estate Agents Disciplinary and Licensing Appeals Tribunal;
to abolish sub-agents' licences and to re-classify sub-agents as agents representatives;
to enable all estate agents and agents' representatives to conduct real estate auctions;
to de-regulate the charging of commission by estate agents;
to make other minor amendments.

4.3 _Ż Part 2

Estate Agents Council

Clause 3 inserts a new Part 11A which establishes an Estate Agents Council and sets out its objectives, functions and powers. The Estate Agents Council replaces the old Estate Agents Board,("EAB"). The Council consists of 8 members appointed by the Governor in Council.

Estate Agents Licensing Authority

The new Part 11B establishes the Estate Agents Licensing Authority. New section 7A provides that the Authority consists of one member and that the Director is that member. New section 7B sets out the functions of the Authority. Its functions include dealing with prosecutions under the Act and initiating inquiries before the Tribunal, licensing, the administration of the Estate Agents' Guarantee Fund and the enforcement of trust account regulations. The Committee notes the comments in the Second Reading Speech:-

"Administrative functions currently performed by the EAB will be performed by an Estate Agents Licensing Authority. In addition, the Authority will have specific reporting duties and be accountable to the Council in relation to the implementation of policy. In other respects, the Authority will mirror the current functions performed by the Chief Executive Officer and staff of the EAB."

New section 7E provides that staff may be appointed under the Public Sector Management Act 1992. The Committee notes that pursuant to subclause (h) of clause 5, "Director" has the same meaning as in section 4 of the Consumer Affairs Act 1972.

New section 7D provides that the Authority must comply with any written directions of the Council. Those directions are only given with the approval of the Minister. New section 7G gives the Authority the power to delegate its functions and powers to particular people or associations. The Committee notes that the delegation of power must be done by way of instrument and is limited.

New section 7H sets out the power of the Authority to deal with disputes. Sub-section (1) provides that the Authority may deal with any dispute that arises between an estate agent and a client of the estate agent or another estate agent or a member of the public. Sub-section (4) provides that the Authority may refer to the Tribunal at any time a dispute concerning the amount of commission or outgoings.

The Committee wrote to the Minister requesting clarification of operation of new section 7H. The Minister wrote to the Committee in a letter dated 17 October 1994. The relevant extract is set out:-

"Paragraph 4.3 Part 2, New section 7H

1. The Authority may deal with any dispute.....(subsection (1)) . The role of the Authority is to attempt to mediate or conciliate a dispute. This is equivalent to the functions currently performed by the Office of Fair Trading with respect to other regulated occupations under its jurisdiction.

2. In the case of disputes concerning commission or outgoings the Authority will deal with such disputes only if it is given notice within 28 days of the client receiving advice from the Agent....(subsection (2))

3. The Authority has a discretion to consider disputes as to commission/outgoings, in exceptional circumstances, notwithstanding that notice has not been given within the 28 days. (subsection (3)).

4. The Authority may refer a dispute concerning commission/outgoings to the Tribunal for final determination. (subsection (4)). Also refer to new section 91B(1)(e) and (2). The Authority will act as a "filtering" mechanism. The parties cannot go directly to the Tribunal. The Tribunal will not have the jurisdiction to hear or determine any other type of dispute between parties. In these cases the parties will have the usual legal remedies before the appropriate court, depending upon the nature and quantum of the dispute.

New 91B

The powers and functions of the Tribunal under new section 91B must be read in conjunction with the corresponding provisions which give rise to a matter coming before the Tribunal. It is then clear who may bring any particular matter and it is not always necessary to be referred by the Authority. For instance, an applicant may appeal to the Tribunal against the refusal by the Authority to issue a licence (new section 21(4D) whilst the Authority may at any time apply to the Tribunal for the holding of an enquiry....(new section 25(1))"

4.3 _Ż The Estate Agents Disciplinary and Licensing Appeals Tribunal

Clause 4 inserts a new Part VIIA which establishes The Estate Agents Disciplinary and Licensing Appeals Tribunal. The Chairperson and Deputy Chairpersons are appointed by the Governor in Council. New section 91B sets out the functions and powers of the Tribunal. New clause 91J provides that the Chairperson may subject to the approval of the Minister , retain experts to advise the Tribunal in respect of any proceedings before the Tribunal.

The Committee wrote to the Minister requesting comment on new section 91J. The Minister wrote to the Committee in a letter dated 17 October 1994. The relevant extract is set out:-

"This new section is in identical terms to the corresponding provision in the Motor Car Traders Act 1986 (sec 100) and the Credit Administration Act 1984 (sec 25). The Minister's approval is not to "second guess" the retention of experts in a particular case, as such, but to enable the Minister to approve such experts in the context of funding which must also be allocated from the Estate Agent's Guarantee Fund."

New section 91N provides that a party to proceedings may appear personally before the Tribunal or may be represented by a qualified legal practitioner. New section 91P provides that the proceedings of the Tribunal must take place in public. The Tribunal is not bound by the rules or practices of evidence.

4.4 _Ż Abolition of right of appeal to the AAT - Right of appeal to the Supreme Court on questions of law

The current right of appeal from the EAB to the Administrative Appeals Tribunal is abolished. The Committee notes that the new Tribunal is composed of individuals appointed by the Governor in Council and the Chairperson and Deputy Chairperson must be a barrister and solicitor of not less than 5 years standing.

The new section 91Q provides that the Tribunal may refer a question of law to the Supreme Court during the course of the proceedings. The Committee notes that this provision is identical to the corresponding provision, section 54 of the Administrative Appeals Act 1984.

New section 91Y sets out the procedures relating to appeals to the Supreme Court and provides a separate right of appeal on a question of law to the Supreme Court after a matter has been determined by the Tribunal. The Committee notes that this provision is identical to the corresponding provision, section 52, of the Administrative Appeals Act 1984.

The Committee also notes the comments in the Second Reading Speech:-

"This Government has received requests for amendment of the Act from the Estate Agents Board ("EAB"), the Real Estate Institute of Victoria, industry members and consumers of real estate services in order to deal with, amongst other matters, inherent deficiencies relating to the hearings and other powers of the EAB as well as to the charging of commission. The Bill addresses these issues as well as implementing other important and relevant reforms."

4.5 _Ż Part 3 - General amendments

Clause 5 amends several definitions in the Estate Agents Act 1980. Sub-clause (r) increases the numerical estimate for the business and goodwill of a "Small business" from $100,00 to $200,000 - $500,000. Clause 6 increases the penalties for unlicensed trading and licence lending.

Clause 7 abolishes sub-agents licences. The Committee notes the comments in the Second Reading Speech:-

"In accordance with the 1993 report by the Vocational Education, Employment and Training Committee and the principle of mutual recognition, licensing requirements of real estate sub-agents is to be abolished."

Clause 8 sets out the circumstances as to when an estate agent will be responsible for the acts of his or her agent's representative. It also provides that a person is not to conduct an auction for the sale of any real estate unless the person, subject to certain listed exceptions, is a licensed estate agent or employed as an agent's representative. Clause 9 makes minor changes to the estate agent licence eligibility criteria. It permits an unlicensed person to be a working director of a licensed corporation if that person is an immediate relative of the officer in effective control who is also a working director. It also abolishes the current requirement to advertise an application for an estate agent's licence. Instead, a person may apply to the Authority for an estate agent's licence in the form specified by the Authority and accompanied by the prescribed fee.

Clause 11 sets out the eligibility requirements in order to be employed as an agent's representative. The new section 16A requires the Authority to maintain a register of people declared ineligible to be agents' representatives. The Authority must remove from the register the name and details of any person who becomes eligible to be employed as an agent's representative as soon as the Authority becomes aware of the person's change of status.

Clause 12 amends section 21 of the Act which relates the granting of a licence. The Authority must provide written reasons for its refusal to grant a licence and may conduct any investigations which it thinks appropriate in considering a licence application. An applicant has a right of appeal to the Tribunal but must do so within 28 days from the date of receiving the notice of refusal and the reasons for refusal. Clause 13 sets out the circumstances as to when an estate agent's licence is automatically cancelled. Clause 14 provides for an annual licence fee and an annual statement and the time when these must be provided to the Authority. The Committee notes that the introduction of this clause will be deferred until 1996 to allow new administrative arrangements to be put into place.

Clause 17 inserts new sections 29A and 29B which relate to the cancellation or suspension of a person's licence. Clause 18 requires all branch managers of a branch office of an estate agency to hold an estate agent's licence except those branch managers approved prior to the commencement of the Bill.

Clause 19 substitutes a new section 30AA which sets out the duties of the officer in effective control of a corporation. It also inserts a new section 30AB which sets out the circumstances when one can obtain a rural branch manager's licence. Clause 20 lists the circumstances when a person may apply to obtain permission to be an estate agent despite being strictly ineligible. Clause 20 inserts new sections 31A-31E into the Act which sets out the circumstances in which people involved in the a Guarantee Fund Claim may regain a licence in special circumstances. Clause 22 inserts a new section 49A which makes it an offence not to give certain information.

Clause 23 provides for the deregulation of commission rates. Clause 29 places a provisional restriction upon immediate family members of employees of estate agents which may be waived by the vendor on certain conditions. The informed consent of the vendor will need to be obtained. The Authority may permit a person to make a purchase where it would be otherwise prohibited under the Act. Clause 37 sets out the procedures and purposes for which excess funds in the Estate Agents' Guarantee Fund may be applied.

Clause 42 provides that the Court may impose in addition to any other penalty, the person to pay any amount received as commission received by the person while the offence was being committed to the Estate Agents' Guarantee Fund. Pursuant to the new section 95A, orders for fines and costs may be enforced through the Magistrates Court. Clause 44 changes the regulation making powers.

4.6 _Ż Part 4 - Minor consequential amendments - Part 5 - Transitional provisions

Clause 47 makes minor consequential amendments. Clause 49 is a savings provision.

IMPOUNDING OF LIVESTOCK BILL

5.1

This Bill was introduced into the Legislative Council on 5 October 1994 by The Honourable Roger Hallam MLC.

5.2

This Bill regulates the impounding of livestock. In particular, its purposes are:-

to provide for the impounding of livestock trespassing on any land or roads;
to regulate the impounding, care, release, disposal or destruction of impounded livestock;
to repeal the Pounds Act 1958 and consequentially amend various other Acts.

5.3

Clause 3 sets out various definitions.

5.4 _Ż Part 2 - Impounding of livestock

Clause 5 sets out who is authorised to impound livestock and in what circumstances. Clause 6 sets out the general duties of persons who impound livestock. Clause 7 provides that an authorised person is entitled to payment for charges relating to the impounding of livestock. Those charges may be recovered as a civil debt in a court of competent jurisdiction. Clause 8 sets out the duties of an authorised officer of a council. Clause 9 sets out the duties of owners and occupiers of land and the penalties for failure to perform those duties.

Clause 10 sets out the obligations of owners and occupiers of land to deliver livestock to the pound. Clause 14 requires councils to keep records. Clause 15 requires councils to notify owners. Clause 16 governs the release of livestock from the pound.

5.5 _Ż Part 3 - Disposal or destruction of livestock

Clause 17 requires councils to hold livestock for 7 days before the livestock can be destroyed in accordance with section 21. Clauses 18 and 19 sets out the circumstances in which the council may sell unclaimed livestock. Clause 21 sets out the circumstances in which livestock can be destroyed. Clause 22 sets out the power of authorised officers to destroy impounded livestock in certain circumstances.

5.6 _Ż Part 4 - Offences

Clause 25 sets out the offences and penalties relating to livestock.

5.7 _Ż Part 5 - Miscellaneous

Clause 26 provides that the owner of impounded livestock may bring proceedings in the Magistrates' Court. Clause 28 governs the holding of impounded livestock where a council has received notification of proceedings under clause 27. Clause 29 sets out the orders that a court may make. Clause 33 sets out the application of money recovered under the Act.

5.8 _Ż Part 6 - Regulations

Clause 34 gives the Governor in Council the power to make regulations.

5.9 _Ż Part 7 - Repeals, amendments and transitional provisions

Clauses 35 to 43 make minor and consequential amendments.

The Committee makes no further comment.

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